Clear and Plain Intention: Extinguishment of Native Title in Australia and Canada post -WIK

Abstract

At the heart of the decision in The Wik Peoples v Queensland is the issue of extinguishment of native title.1 The question, broadly put, of whether the grant of a pastoral lease under the Queensland Land Acts (1910 and 1962) necessarily extinguishes native title required the High Court to further elaborate on the general principles relating to extinguishment of native title which were laid down in Mabo v State of Queensland (No 2}.' The Australian High Court's decision in Wik adds to a growing body of decisions in which the issue of extinguishment of native title, or Aboriginal rights, has been considered. Although accepted in all jurisdictions that Aboriginal rights can only be extinguished by a legislative enactment which exhibits a clear and plain intention to extinguish such rights, the parameters of the clear and plain doctrine are still being refined. It was accepted, for example, in Mabo, Wik and Western Australia v The Commonwealth' that the requirement of clear and plain intention does not necessarily connote that express language must be used.